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Ewing v. Ryan

United States District Court, D. Arizona

June 4, 2015

Dominique Daron Ewing, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

JAMES A. TEILBORG, Senior District Judge.

I. Status of this case

On December 17, 2013, Petitioner filed a Petition for Writ of Habeas Corpus. On October 16, 2014, the Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R) recommending the Petition be denied and dismissed with prejudice. Doc. 22. Petitioner did not file objections to the R&R, and on November 20, 2014, this Court accepted and adopted the R&R and denied and dismissed the Petition. Docs. 23 and 24.

Later, this Court discovered Petitioner may not have been receiving correspondence from the Court. Doc. 25. This Court permitted Petitioner to move to reopen the case and contemporaneously file his objections to the R&R by March 6, 2015. Id. On March 5, 2015, this Court received Petitioner's objections to the R&R. Doc. 26. The Court will construe this filing as both objections and a motion to reopen this case.

II. Reopening case

Consistent with this Court's February 5, 2015 Order (Doc. 25), the Court will grant Petitioner's motion to reopen and consider his objections de novo.

III. Review of R&R

As indicated above, pending before this Court is Petitioner's Petition for Writ of Habeas Corpus and an R&R recommending the Petition be denied and dismissed with prejudice. This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, but not otherwise.'"); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court "must review de novo the portions of the [Magistrate Judge's] recommendations to which the parties object."). District courts are not required to conduct "any review at all... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) ("the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made."). As indicated above, Petitioner has now filed objections to the R&R. Accordingly, the Court will review the portions of the R&R to which there is an objection de novo.

IV. Petition

A. Factual Background

In his objections, Petitioner states, "The petitioner concedes to the correctness of the factual background...." Doc. 26 at 1. Accordingly, this Court accepts and adopts the factual background from the R&R, which is as follows:

I. Procedural Background
A. Charges, Guilty Plea, and Sentencing
On November 10, 2010, Petitioner was indicted in the Maricopa County Superior Court on the following charges: (1) first-degree murder, a class one dangerous felony (Count One); (2) attempted armed robbery, a class three dangerous felony (Count Two); (3) kidnapping, a class two dangerous felony (Count Three); (4) aggravated assault, a class three dangerous felony (Count Four); and (5) burglary in the first-degree, a class two dangerous felony (Count Five). (Doc. 17, Ex. A.) The State also alleged the following aggravating circumstances: (1) the offenses involved the infliction or threatened infliction of serious physical injury; (2) the offenses involved the use, threatened use, or possession of a deadly weapon or dangerous instrument during the commission of the crime (a gun); (3) the offenses involved the presence of an accomplice; (4) Petitioner committed the offenses as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value; (5) the offenses caused physical, ...

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